Is USPTO Equipped to Implement Section 25 of the America Invents Act?
Section 25 of the America Invents Act, titled 'PRIORITY EXAMINATION FOR IMPORTANT TECHNOLOGIES', contains this provision:
[The Office] may, subject to any conditions prescribed by the Director and at the request of the patent applicant, provide for prioritization of examination of applications for products, processes, or technologies that are important to the national economy or national competitiveness without recovering the aggregate extra cost of providing such prioritization …
By including this provision, Congress has a priori determined, and the Executive Branch has concurred via Presidential signing of the Act, that the US Patent and Trademark Office has the technical, economic, and managerial expertise to successfully determine technologies that will be economically important.
Based on our analyses, we believe that significant improvements in USPTO internal processes should occur before it attempts to implement Section 25.
We base this conclusion on outcomes from the Office's 'Green Technology Pilot Program,' which accepted applications from early December 2009 through mid-February 2012. The program is probably the best current example of a program directed toward economically important technology of the type envisioned by Section 25. At the close of the program 3,520 applications had been accepted. Way Better Patents™ is continuing its analyses of this program, the patents it issues, and the assignees awarded those patents. There are several key indicators derived from analysis of the Green Tech program of the need for improvement at USPTO.
Significant Improvement Needed in Establishing Technical Boundaries of Economically Important Technologies
Technical boundaries of a program directed toward economically important technologies will occur at several loci within such a program. First, there are boundaries established for acceptance of an application into a prioritized examination program. Second, during the prosecution phase there are criteria for determining whether accepted applications meet defined standards for issuance under the program. Examples of both of these decision gates, based on documented cases from the Green Technology Pilot Program are provided below.
Boundaries at Program Start
The program was formally established via a notice published in the Federal Register (74 FR 64666; December 8, 2009). For an application to be eligible for the Green Technology Pilot Program, it needed to "materially enhance the quality of the environment under the conditions specified in item V of MPEP § 708.02" and be classified under specific USPC classifications in one of the following major categories:
- Alternative Energy Production
- Energy Conservation
- Environmentally Friendly Farming
- Environmental Purification, Protection, or Remediation
Other key requirements included the following:
- The application must be a non-reissue, non-provisional utility application filed under 35 U.S.C. 111(a), or an international application that has entered the national stage in compliance with 35 U.S.C. 371, regardless of the filing date of the application. Reexamination proceedings are excluded from this pilot program.
- The application must contain three (3) or fewer independent claims and twenty (20) or fewer total claims.
- For applications that contain more than three independent claims, twenty total claims, or multiple dependent claims, applicants must file a preliminary amendment in compliance with 37 CFR 1.121 to remove the excess claims or the multiple dependent claims at the time the petition to make special is filed.
- The claims must be directed to a single invention that materially enhances the quality of the environment, or that materially contributes to the discovery or development of renewable energy resources, the more efficient utilization and conservation of energy resources, or green house gas emission reduction.
- The petition must include a statement that, if the USPTO determines that the claims are directed to multiple inventions in a restriction requirement, applicant will agree to make an election without traverse in a telephonic interview, and elect an invention that meets the eligibility requirements in section II or III of the notice (i) cited above.
- The petition to make special must be timely filed electronically using the USPTO electronic filing system, EFS-Web.
- The petition to make special must be filed at least one day prior to the date that a first Office action (which may be an Office action containing only a restriction requirement) appears in the Patent Application Information Retrieval (PAIR) system.
The initial Federal Register Notice also included a classification requirement:
"The classification requirement set forth in this section of the notice will assist the USPTO to balance the workload and gauge resources needed to achieve the goals of the Green Technology Pilot Program. The USPTO recognizes that certain patent applications pertaining to green technologies may be excluded by this requirement."
This section of the Notice continued with an internally contradictory statement:
"In order to be eligible for the Green Technology Pilot Program, the application must be classified in one of the U.S. patent classifications ("USPCs") listed below at the time of examination. The classification descriptions are provided as helpful information, and they will not be used in determining whether an application is eligible. … The following is a list of the eligible classifications[.]"
Notice the sequence (emphasis added): "The classification requirement" … "to be eligible … the application must be classified" … "they will not be used in determining whether an application is eligible" … "list of the eligible classifications". It is abundantly clear that eligibility for program entry was to be partially based on the application's subject matter matching one of the listed USPC classifications.
The list of specific classifications is dominated by energy-related subjects, is internally inconsistent with regard to the granularity of the specified subject matters, and cuts such a narrow swath through the universe of technologies that can be considered 'green' or 'clean' as to be an ineffective filter for a 'Green Tech Pilot Program.' The classification list in 74 FR 64666 contains 163 discrete classifications or classification ranges covering 111 unique USPC classes. They are grouped under the four main categories listed above: alternative energy; energy conservation; environmentally friendly farming; and environmental purification. The number of subject items listed in each category is a rough measure of program emphasis.
|Alternative Energy Production||62|
|Environmentally Friendly Farming||8|
|Environmental Purification, Protection, or Remediation||40|
Seventy-one (71%) percent of the subject matter initially eligible for entry to the program was some form of energy technology. Twenty-five (25%) percent was for technology to purify, protect, or remediate the environment. A mere five (5%) percent was directed toward 'environmentally friendly farming.' As an aside, 'environmentally friendly' is a value judgment, not a quantitative or technical metric. The list is a curious mix of very broad topics considered at an entire USPC class level (such as Class 376 Nuclear Power - Induced Nuclear Reactions, processes, systems and elements; or Class 504 Yield Enhancement (i.e., agricultural yield enhancement) and very narrow topics comprising a single USPC subclass (the finest level of granularity in the US classification system), such as agricultural waste (44/589; in the alternative energy category) and pollution abatement/soil conservation (405/15; in the environmentally friendly farming category).
The initial list of required classifications also contained subjects that would seem to be somewhat unimportant for inclusion in a pilot program for clean technology. For example, the following subject matter might be questioned as to its relative importance:
- Swimming pools (alternative energy)
- Human powered vehicle (energy conservation)
- Watercraft Drive (Electric Powered) (energy conservation)
- Watercraft Drive (Human Powered) (energy conservation)
- Wave-Powered Boat Motors (energy conservation)
- Wind-Powered Boat Motors (energy conservation)
The classification requirement was later dropped by USPTO in a May 2010 Federal Register Notice (75 FR 28554), which stated "the pilot program was limited to only applications classified in a number of U.S. classifications to assist the USPTO to balance the workload and gauge resources needed for the program. The USPTO has determined that the classification requirement is unnecessary because the workload has been balanced with other mechanism[s], and this requirement was causing the denial of petitions for applications that are drawn to green technologies." The last phrase of this statement is further proof that, in fact, the initial classification list was fully intended to both serve as a program requirement and to filter applications according to the desired broad subject categories.
Eliminating this requirement is also an implicit recognition by USPTO that it did not perform adequate planning during the design of the program regarding subject matter that would be eligible, or how that subject matter would be described (i.e., in a list of required classifications) or subsequently evaluated by USPTO examiners during the prosecution of accepted applications. Innovators are much better at defining the scope of a broad economically important technology such as clean tech: through September 17, 2013 patents issued from the program contain 1,076 unique OR (the Original, first-listed US classification on a US patent. It defines the core subject matter described in the patent's claims.) classifications in 162 unique USPC classes.
Way Better Patents™ believes that for future programs that might be implemented under Section 25 of the AIA, USPTO, and most importantly the innovators that apply for accelerated examination, would be best served by preparing a definition of the economically important technology and avoiding altogether the preparation of a list of required classifications. We offer as an example the definition of clean technology used by Way Better Patents™ to compile our special collection:
Inventions that use less material, less energy, minimize waste, or lessen negative environmental consequences. Inventions in the clean tech patent ecosystem, when brought to market, have economic features of offering competitive returns for investors, competitive prices for consumers, and realistic profits for producers.
Additional details about our patentECO™ innovation hierarchy are available here.
Should This Invention Be Patented Under the Program?
After applications were accepted into the program, they underwent accelerated examination. The prosecution phase included an unofficial decision gate — "should this invention be patented under the program?" This is evident from the documentation found in public PAIR, the USPTO's Patent Application Information Retrieval system that provides access to the prosecution history and documents for patent applications. Two General Electric Company patents are highly instructive on several levels for what the prosecution history shows about internal USPTO decision-making in the program. These patents plus three others are an excellent representation of the nebulous technical boundaries of the program, and seem to point to a desire on the part of USPTO to focus on the numbers of patents issued from the program to make it appear successful, and not focus on whether or not the patented technology is demonstrably clean tech.
According to USPTO and GE, Doors Are Green Tech
Patent US 8,171,674, "Doorway for a wind turbine tower," issued in early May 2012 and is assigned to GE. The technology, according to USPTO, is a static structure "including a component designed to receive a disparate article having disparate article mounted thereto on shaft or tower." In other words, an object (in this case, a doorway) mounted on a tower.
The abstract states:
A doorway for a tower of a wind turbine is disclosed. The doorway may generally comprise a doorway frame having a substantially rectangular shape and including an inner face and an outer face. An opening may be defined between the inner and outer faces and may be configured to provide access to an interior of the tower. Additionally, at least one of the inner face and the outer face may define a substantially planar surface along at least a portion of its width.
The patent contains 13 claims; claim 1 is representative:
A tower for a wind turbine, the tower comprising:
a tower segment having a first end and a second end, the tower segment defining a curved shape between said first and second ends; and a doorway disposed between said first and second ends, said doorway comprising:
a doorway frame having a substantially rectangular shape and including an inner face and an outer face and, an opening defined through said inner and outer faces, said opening configured to provide access to an interior of the tower, wherein at least one of said inner face and said outer face defines a substantially planar surface along a substantial portion of its width.
How was a patent for a doorway issued as a green tech/clean tech invention? We reviewed documents found on Public PAIR to try to answer that question.
Applicants wishing to have their inventions considered under the US Patent Office's Green Tech Pilot Program were required to complete a form to specifically request accelerated examination under the program. The inventor duly filed the form (received at USPTO 5/24/11); here is an excerpt:
Applicant respectfully submits that Special Status is sought on the basis that the present invention materially contributes to the development of renewable energy resource or energy conservation.
The petition to make special was routed to Art Unit 3633 for a decision. On June 7, 2011, USPTO (a Tech Center 3600 Quality Assurance Specialist, specifically) replied:
The petition is DISMISSED.
The Patent Office's reasoning was that "[t]he petition lacks item 4".
Item 4 in the requirements for achieving Green Tech accelerated exam status was:
If the disclosure is not clear on its face that the claimed invention materially contributes under category (A) or (B) [A) materially enhances the quality of the environment or B) materially contributes to: i) the discovery or development of renewable energy resources, ii) the more efficient utilization and conservation of energy resources, or iii) greenhouse gas emission reduction.] 1, the petition must be accompanied by a statement by the applicant, assignee, or an attorney/agent registered to practice before the Office explaining how the materiality is met.
Additional justification for dismissal was provided by USPTO:
In regard to item 4, the claims are directed to a doorway used in a tower which can be used to support a wind turbine. Since the wind turbine is not claimed, the claimed doorway or tower in and by itself would not ordinarily contribute to the development of renewable energy resources — a doorway or a tower cannot generate energy or convert the mechanical energy into electrical energy. There is no evidence in the present application that the claimed doorway or tower materially contributes to the development of renewable energy resources. In addition, as the claimed doorway or tower would not necessarily result in a tower used to support a wind turbine, petitioner’s assertion of the claimed method's contribution to the development of renewable energy resources or energy conservation is entirely speculative. As stated in the notice, the materiality standard does not permit an applicant to speculate as to how a hypothetical end-user might specially apply the invention in a manner than [sic] could materially contribute to category 9A) or (B). Also see MPEP §708.02 (VI). Accordingly, it is not agreed that the application on its face meets that materiality standard.
This seems to be a very reasoned and well-supported dismissal, which we agree with on technical grounds — a doorway is not clean tech.
GE disagreed and filed a Request for Reconsideration of the Patent Office’s denial of the request for accelerated examination under the Green Tech Program; this was received by USPTO on June 30, 2011. The heart of GE's request to reconsider is contained in the penultimate paragraph of their Request:
Embodiments of the present invention materially contribute to the development of renewable energy by reducing the thickness of tower segments required for wind turbines and reducing the time and expense necessary to form the tower doorway. As such, these measures promote investment in wind turbine technology by making it a more cost-effective alternative to other non-renewable energy technologies, which in turn promotes increased energy production.
GE is arguing that reducing the thickness of tower segments, and reducing time and expense (to them, the manufacturer) to form a wind tower doorway constitute sufficient reasons for the application to be accepted for accelerated examination under the program. They are arguing here that thinner wind turbine tower segments, and reduced manufacturing time and expense for GE do materially contribute to the development of renewable energy resources or energy conservation. But none of those aspects address either the requirements of Item 4, provided above, under which the accelerated exam request was dismissed, or the USPTO's specific, detailed reasoning supporting that dismissal.
On August 4, 2011, USPTO agreed with GE's request (what a surprise); this time, however, the reply came from a QA Specialist in Tech Center 1700:
The petition is GRANTED.
USPTO did not provide any reasoning for supporting their grant of the petition to make special, nor any reasoning to explain why they now viewed GE's wind turbine doorway as meeting program requirements, when just a few weeks previously they had given a well-written, logical set of reasons for rejecting the application for accelerated examination under the program, and nothing in the application had changed via amendment to address USPTO's initial reasoning.
Thus, the bottom line in GE's and USPTO's thinking is that a wind tower door is clean tech.
This sequence of events, and the information derived from the patent application and prosecution documents call into question the nature of USPTO's decision-making process in an accelerated examination program directed toward economically important technology.
According to USPTO and GE, Bolts Are Green Tech
Exactly three weeks after the GE doorway patent issued, USPTO granted GE US 8,186,923, "Connecting arrangement and method of fastening a bolt."
The abstract provides a summary:
A connecting arrangement is provided. The connecting arrangement includes a bolt with a fastening portion at one end thereof, which has one or more grooves; a cotter having a conical shape and one or more convex cuts on the inner side of the cotter adapted for fitting with the one or more grooves of the fastening portion of the bolt; two support blocks, each having a thread on the outer side, wherein at least one of them is on the inner side adapted for fitting to the conical shape of the cotter; and a fastener having a thread on the inner side, wherein the fastener is adapted for being screwed on the support blocks.
Claim 1 provides some excellent patent-speak:
A connecting arrangement, comprising:
a bolt including a fastening portion including one or more grooves, whose circumference is differentiable between at least two portions; a cotter including at least two parts and including an essentially conical shape on the outer side and a axial bore when the at least two parts are put together, wherein the axial bore provides one or more convex cuts on the inner side of the bore, wherein the convex cuts are adapted for fitting with the one or more grooves of the fastening portion of the bolt; at least one first support block including a thread on the outer side; at least one second support block including a thread on the outer side, wherein the at least one second support block is on the inner side adapted for fitting to the conical shape of the cotter; and a fastener including a thread on the inner side, wherein the fastener is adapted for being screwed on the support blocks.
What does this have to do with clean tech? According to the Background of the Invention section of the issued patent, "Especially in very large applications, such as wind energy systems, the screw connection has to meet high security demands. The flange connections of wind energy systems are also screwed and the required strength is achieved by using large screws."
Curiously, the same sequence of events occurred for this ‘923 patent as for the ‘674 doorway patent — the filing of the Petition to Make Special, some volleying back and forth with the examiner and then USPTO miraculously accepting the petition without comment or justification. In this case, GE submitted the petition to USPTO on July 12, 2011. The same Tech Center 3600 QA Specialist dismissed the petition on July 22, 2011. Once again, item 4 requirements were the basis of the Tech Center dismissal. The detail continues a theme we saw in the ‘674 doorway patent:
In regard to item 4, the claimed bolt-nut/connecting system for being used in a wind energy system would not materially contribute to the development of renewable energy resources or energy conservation since the bolt-nut/connecting system cannot generate energy or convert the mechanical energy into electrical energy. It is unclear which part of the bolt/connecting system conserves energy. A bolt-nut/connecting system plays no role in the operation of the wind energy system. In addition, as the claimed bolt-nut/connecting system and the resulting support structure may not necessarily be used in a wind energy system, petitioner's assertion of the bolt-nut/connecting system's contribution to the development of renewable energy resources or energy conservation is entirely speculative. As stated in the notice, the materiality standard does not permit an applicant to speculate as to how a hypothetical end-user might specially apply the invention in a manner than [sic] could materially contribute to category (A) or (B). Also see MPEP §708.02 (VI). Accordingly, it is not agree[d] that the application on its face meets that materiality standard. (emphasis added)
GE filed a Request for Reconsideration on August 24, 2011 which contained some artful linguistic gymnastics on why a bolt is critical to green energy. This time the company,
respectfully submit[ted] that the Federal Registry does not require that an invention generate energy or convert mechanical energy into electrical energy in order to materially contribute to the development of renewable energy resources or energy conservation. … Embodiments of the present invention materially contribute to the development of renewable energy by providing an arrangement and methods of fastening a bolt that increases the fatigue resistance of a connection in wind energy systems. These measures increase the availability of wind energy as a viable power generating option by reducing maintenance and decreasing costs, and also by reducing wind turbine down time. As a result, embodiments of the present invention promote increased energy production, and thus materially contribute to the development of renewable energy resources or energy conservation.
However, here is text from Federal Register 74FR64666 (found in section III of the Notice) which seems to undercut GE's argument:
Patent applications are also eligible for the Green Technology Pilot Program if the applications are for inventions that materially contribute to: (1) The discovery or development of renewable energy resources; (2) the more efficient utilization and conservation of energy resources; or (3) the reduction of greenhouse gas emissions. The term "renewable energy resources" for purposes of the procedure specified in this notice includes hydroelectric, solar, wind, renewable biomass, landfill gas, ocean (including tidal, wave, current, and thermal), geothermal, and municipal solid waste, as well as the transmission, distribution, or other services directly used in providing electrical energy from these sources. (emphasis added)
Admittedly, this wording is somewhat open-ended, but "development of renewable energy resources", and the last emphasized clause, strongly suggest that USPTO did not intend the connection and fastening of bolts to be considered eligible under the program. This is supported by the wording of their petition dismissal.
No matter, however, as the USPTO accepted GE's arguments and granted their petition on September 29, 2011. This decision was also signed by the same Tech Center 1700 QA Specialist as the corresponding one for the ‘674 patent.
USPTO Includes Camping Tents As Green Tech
Another patent that calls into question USPTO's decision-making process for awarding green tech patents is US 8,230,870, issued on the last day of July, 2012. “SUV tent traveler” was invented by Robert D. Horejsh of Altoona, WI. The patent abstract provides a summary:
"An elevated floor camper tent for SUV (Sport Utility Vehicle) type vehicles having electric, hybrid or other energy-saving, lower horsepower engines and top hinged rear doors. The entire tent assembly fits inside the vehicle for aerodynamic maximization and the state-of-the-art materials minimize the total weight. A set of continuous slides provides support and, with integrated footpads, facilitates setup on hard or soft surfaces. The campers sleep within the relative safety of the vehicle and utilize the main part of the tent as a living area. The standard features, under actual test conditions, suggest the design as safe, effective and user-friendly plus the stable, framed living area having built in rail-type support braces and kick panels help prevent the users from accidents."
The specification of a patent is the “written description of the invention and the manner and process of making and using the claimed invention.” Much useful information can be found there, and for clean tech inventions in particular the inventors’ statements regarding why they think their innovation is clean tech.
The specification of the ‘870 patent contains several statements of Horejsh’s intent:
The higher-mileage, hybrid and electric vehicles could be utilized for camping thus enhancing their versatility and general usage in the camping community. Our camper-tent invention is designed from the ground up to be specifically used by the vehicles of now and in the future. The "SUV Tent Traveler" (name used for identification purposes only) is a concept of a tent, tent frame, elevated camper floor contained entirely within the vehicles’ storage area and mounted on continuous slides. Earth-friendly vehicles are limited for camping although we purchased a Ford Escape Hybrid knowing the towing capacity was only 1,000 lbs. (passengers and cargo included). What we didn’t know was that already optimistic rating was based on a flat surface at lower altitudes and campers under 1,000 lbs. were barely available, those being very expensive. Alternatives involved roof top units with a MPG robbing aerodynamic drag; mini trailers with the inherent problems of pulling another object; and tents, set directly on the ground with a boot to connect to a vehicle. We found the vehicle rear area too short to comfortably sleep in so, in effect, that alternative (attached ground tent) was really just camping out. Earth-friendly vehicles include hybrid, electric, enhanced, dual or multiple mode-powered vehicles, or generally any vehicle with lower rated horsepower for higher MPG, designed by the manufacture to save energy through aerodynamic design with top hinged rear doors. The key to its uniqueness is a continuous flat plane slide system comprised of a plurality of sections adjacent to each other to extend the main floor panel longitudinally out from under the cargo floor panel.
How is a tent that can be stored in a vehicle considered to be clean tech?
The tent does not decrease vehicle weight (to the contrary, it increases weight).
The SUV tent does not increase vehicle fuel efficiency (it decreases it since it represents extra weight).
It does not improve vehicle aerodynamic form — it’s stored within the vehicle except when set up (during which time the vehicle is not traveling and incurring aerodynamic friction), just as your normal, everyday pup tent would be.
The invention is classified under CLASS 135, TENT, CANOPY, UMBRELLA, OR CANE.
The patent has only two claims.
The time between filing and grant was less than a year, short even by Green Tech program standards.
And what about the prior art? A walk around Bonnaroo (or a look at the photo stream of the parking/camping area) or a visit to a college football tailgate will yield lots of prior art small SUV tent configurations.
This invention is from an independent inventor; they generally have a harder time commercializing their inventions even if accelerated patenting is helpful. We'll skip the the intent of the program to "accelerate the development and deployment of green technology, create green jobs, and promote U.S. competitiveness in this vital sector." (see the press release announcing the program)
At the risk of being cynical — is this a quota-making invention that gets to wear the green label?
Vehicle Storage Compartments Are Green Tech
Patent US 8,317,252, "Vehicle openings," issued November 27, 2012 to Stephen G. Kimmet of Tiffin, OH. He retained patent ownership. Its abstract states:
Added openings are provided for sport utility vehicles (SUV), pick-up trucks, two and four door vehicles, vans, minivans, sedans, station wagons, or other vehicles. The opening(s) may utilize doors, gates, windows, sunroofs, or lids that provide more physical and/or visual access to the interior space, cargo, and/or seating within the vehicles that currently are not easily accessible, viewed, seen-by, or displayed-on conventional opening means. These openings may also provide the ability to place cargo within the space of the vehicle that current vehicles prohibit from being carried therein, or they may provide decorative, descriptive, or electronic displays for such vehicles, for example, advertising on taxi cabs. Among the embodiments, this invention results in a new 2 door or a 4 door SUV vehicle having added rear side doors, and a new 2 door or 4 door sedan that in effect functions likes a pick-up.
Claim 1 states:
A sedan automobile, comprising:
a trunk disposed at the rear of a sedan automobile; and a sedan trunk gate pivotably attached to the sedan automobile near the lower rear portion of the trunk;
wherein the sedan trunk gate being pivotably extended substantially vertically forms a generally vertical rear back panel of the trunk, and the sedan trunk gate being pivotably extended substantially horizontally, extends generally horizontally beyond the rear of the sedan.
There are another 16 claims, and they include absolutely nothing pertaining to any aspect of clean tech.
The reasoning that probably led USPTO to accept this patent into the program and ultimately to issue it form the Green Tech Pilot Program is found in the final paragraphs of the patent specification:
"Very importantly, by providing the above-mentioned capabilities to the 2 or 4 door sedans … of the present invention, vehicle owners are much less likely to own multiple vehicles since they would retain the capabilities of sedans and yet be able to take on many of the utility capabilities of SUVs, minivans, and pickup trucks. As a result of the … present invention, there will be less overall money spent on vehicles, fewer vehicles will be purchased, less storage will be needed for vehicles, lower insurance costs due to fewer vehicles being perceived as needed, with less pollution and release of greenhouse gases being realized.
More sedans compared to the combined numbers of SUVs, minivans, and pickup trucks translates into a higher overall miles/gallon or miles/per charge for the entire population of vehicles. This should be a major goal of our society. The present invention will significantly contribute to diminishing the mindset that more powerful and bigger vehicles is a good thing for our society.
Also, there will be fewer vehicles on the roads, there will be fewer vehicles to block vision when backing out of parking spots, there will be better vision while driving since the overall view has less space being taken up by bigger and wider utility vehicles, and there would be fewer accidents, deaths, and lower health care costs associated with any accident, to name a few.
In some groups the vehicular mindset has become "Survival of the Biggest and Most Powerful." To some degree, a sedan with the utility capabilities of the bigger and powerful SUVs, minivans, and pickup trucks will help in changing this wasteful mindset."
Basically, if inventors have a mere notion or desire that their invention is 'green', that represents adequate justification for USPTO to categorize the invention as 'green' and reward it with a free accelerated examination, especially if the inventor purports to know better than 350+ million US inhabitants what is good for them, and believes that they have a 'wasteful mindset'. The fact that this patent was issued under the Green Tech Pilot Program is more than adequate demonstration that the program was not directed toward and limited to technical, statutory evaluation of patent applications — it is a politicized program directed toward bolstering the current Administration's green 'cred.'
Improved Driver Experience Is Green Tech
Some readers may question the assertion we just made. Perhaps another example from the program will strengthen our position.
Tesla Motors, Inc. (Palo Alto, CA) was awarded patent US 7,741,750, "Induction motor with improved torque density," on June 22, 2010. Inventor Yifan Tang (Los Altos, CA) summarizes his invention in the abstract:
An induction motor embodiment includes a stator defining a stator bore, the stator including a stator yoke having a stator yoke thickness and a plurality of stator teeth, the teeth having a common length, with each of the stator teeth including a stator tooth center portion that extends from a stator tooth bottom portion proximal the yoke to a stator tooth tip portion, with adjacent stator teeth defining a stator slot between them, each stator slot having a stator slot bottom that extends along a stator slot bottom length. In the embodiment, the center portion has a stator tooth width that is less than or equal to one half the stator slot bottom length. In the embodiment, the stator tooth width is smaller than a stator slot opening width distance. In the embodiment, a ratio of stator yoke thickness to stator tooth width is at least 5:1. A rotor is rotably mounted in the stator.
The patent's Background section provides a glimpse into the inventor's (and Tesla's) view of the 'green' nature of the invention:
"Electric motors used in applications such as electric road vehicles should be able to provide varying torque, and at times very high torque peaks. High torque peaks enable drivers to experience quick acceleration or to climb a steep hill, for example. Many preexisting induction motors are unable to accommodate the widely varying torque levels drivers desire."
The Detailed Description expands on this theme:
"EV operating conditions that include, but are not limited to, long driving ranges, fast acceleration and deceleration and fast control dynamic response. … Providing a high ratio of peak torque to continuous running torque provides a number of benefits, including, but not limited to, fast acceleration, improved hill climbing, and a reduced or eliminated need for multi-speed transmissions."
In this patent, changes to a driver's experience, in the form of increased torque and acceleration, are the central problem being solved. Tesla, a manufacturer of high-end electric cars, has been much in the news over the duration of the current Administration. In October 2013 the company sought to explain that a fire in one of its cars batteries was due to it being impaled in an accident.
By awarding this patent under the auspices of the Green Tech Pilot Program, USPTO seems to affirm that the green cachet of an invention is what counts.
Avoidance of the Appearance of Conflict-of-Interest
The USPTO press release announcing the Green Technology Pilot Program is dated December 7, 2009, one day before the formal start of the program as announced in the Federal Register (74 FR 64666; December 8, 2009). It contains a quote from Carl Horton, Chief Intellectual Property Counsel for the General Electric Company:
"We hail this initiative as an excellent incentive to fuel further innovation of clean technology and a terrific mechanism to speed the dissemination of these patented technologies throughout the world."
How was Carl Horton, GE, included in the USPTO press release prior to the formal start of the program? Simple — USPTO called him for a quote. Why did USPTO call a GE representative for a quote on an upcoming accelerated examination program? Simple — Jeffrey Immelt, GE CEO, was head of the Administration's Council on Jobs and Competitiveness. The jobs council met only four times, and not once in more than the final year of its two-year lifespan. It was allowed to expire in February 2013. Also, GE was the 14th-ranked patenting organization in 2008 (the last full year prior to the start of the Green Tech Program), receiving 911 utility patents.
Through September 17, 2013 GE is the top-ranked assignee in the Green Tech Program, receiving 398 patents, or 18 percent of the total program grants. GE clearly knew of the program prior to its start, and has aggressively taken advantage of its entry requirements. The vast majority of GE's Green Tech program inventions are related to wind energy, coincidentally a favorite 'green' energy source of the current Administration. The combination of GE's CEO having served as the chair of a high-profile (if completely unsuccessful) Administration jobs initiative, its Chief IP officer being quoted in the official press release announcing the program, and GE's position as the lead assignee in the program raises the perception of conflict-of-interest and crony capitalism. Future programs that might be implemented under Section 25 of the AIA should avoid such perceptions at all cost.
Measuring, Monitoring, and Transparency
The Green Tech Pilot Program has suffered from wholly inadequate reporting of progress and results on the part of the USPTO. The bare minimum of information was provided by the agency during the course of the program; the last available report is dated April 26, 2012. Programs that might be implemented under Section 25, directed toward 'economically important technologies,' should provide enhanced, frequent, and long-term reporting such that the IP community, and others, can readily identify the applications accepted into a program, the patents issued, the assignees, and the nature of the specific technologies being patented as 'economically important.' Such information is vital for program credibility, Congressional oversight, public scrutiny, and for economic development and planning by corporations, state and local governments, and university programs seeking to align their curricula with projected future employment needs.